Back to
case page
The Free Speech website, http://faculty-web.at.nwu.edu/commstud/freespeech/
Springfield Planned Parenthood v. Jones |
The restrictions silence the message: |
[Justice Scalia, dissenting in Hill]
The burdens this law imposes upon the right to speak are substantial, despite an attempt to minimize them that is not even
embarrassed to make the suggestion that they might actually "assist Š the speakers' efforts to communicate their messages,"
ante, at 22. (Compare this with the Court's statement in a nonabortion case, joined by the author of today's opinion: "The
First Amendment mandates that we presume that speakers, not the government, know best both what they want to say and
how to say it." Riley v. National Federation of Blind of N. C., Inc., 487 U.S. 781, 790‹791 (1988).) The Court displays a
willful ignorance of the type and nature of communication affected by the statute's restrictions. It seriously asserts, for
example, that the 8-foot zone allows a speaker to communicate at a "normal conversational distance," ante, at 22. I have
certainly held conversations at a distance of eight feet seated in the quiet of my chambers, but I have never walked along the
public sidewalkand have not seen others do so"conversing" at an 8-foot remove. The suggestion is absurd. So is the
suggestion that the opponents of abortion can take comfort in the fact that the statute "places no limitation on the number of
speakers or the noise level, including the use of amplification equipment," ante, at 21. That is good enough, I suppose, for
"protesting"; but the Court must know that most of the "counseling" and "educating" likely to take place outside a health care
facility cannot be done at a distance and at a high-decibel level. The availability of a powerful amplification system will be of
little help to the woman who hopes to forge, in the last moments before another of her sex is to have an abortion, a bond of
concern and intimacy that might enable her to persuade the woman to change her mind and heart. The counselor may wish to
walk alongside and to say, sympathetically and as softly as the circumstances allow, something like: "My dear, I know what
you are going through. I've been through it myself. You're not alone and you do not have to do this. There are other
alternatives. Will you let me help you? May I show you a picture of what your child looks like at this stage of her human
development?" The Court would have us believe that this can be done effectivelyyea, perhaps even more effectivelyby
shouting through a bullhorn at a distance of eight feet.
The Court seems prepared, if only for a moment, see ante, at 22‹23, to take seriously the magnitude of the burden the statute imposes on simple handbilling and leafletting. That concern is fleeting, however, since it is promptly assuaged by the realization that a leafletter may, without violating the statute, stand "near the path" of oncoming pedestrians and make his "proffe[r] Š , which the pedestrians can easily accept," ante, at 22‹23. It does not take a veteran labor organizer to recognize although surely any would, see Brief for American Federation of Labor and Congress of Industrial Organization as Amicus Curiae 7‹8that leafletting will be rendered utterly ineffectual by a requirement that the leafletter obtain from each subject permission to approach, or else man a stationary post (one that does not obstruct access to the facility, lest he violate subsection (2) of statute) and wait for passersby voluntarily to approach an outstretched hand. That simply is not how it is done, and the Court knows itor should. A leafletter, whether he is working on behalf of Operation Rescue, Local 109, or Bubba's Bar-B-Que, stakes out the best piece of real estate he can, and then walks a few steps toward individuals passing in his vicinity, extending his arm and making it as easy as possible for the passerby, whose natural inclination is generally not to seek out such distributions, to simply accept the offering. Few pedestrians are likely to give their "consent" to the approach of a handbiller (indeed, by the time he requested it they would likely have passed by), and even fewer are likely to walk over in order to pick up a leaflet. In the abortion context, therefore, ordinary handbilling, which we have in other contexts recognized to be a "classic for[m] of speech that lie[s] at the heart of the First Amendment," Schenck, 519 U.S., at 377, will in its most effective locations be rendered futile, the Court's implausible assertions to the contrary notwithstanding.
|
Back to |
The Free Speech website, http://faculty-web.at.nwu.edu/commstud/freespeech/ |
|